Brenda Mazariegos et al. v. City of Stamford et al. (2013)

Memorandum of Decision on Defendant City of Stamford's Motion for Summary Judgment on the Eighteenth, Thirty–Ninth, Fifty–Seventh, Nineteenth, Fortieth, Fifty–Eighth, Twenty–First and Twenty–Second Counts of the Second Revised Complaint (No. 133)

Reference is made to this court's Memorandum of Decision on Defendant Gregory Zach's Motion for Summary Judgment on the Fifth and Twentieth Counts, dated October 11, 2013 (No. 134.86) for a summary of the factual background as alleged in the complaint, and the Standards for Summary Judgment to be applied in deciding this motion.

The motion presently before the court is the Motion for Summary Judgment filed by the codefendant City of Stamford (the “City”).   The City asks for summary judgment in its favor on:  (A) Counts 18, 39, and 57 which allege common-law negligence in similar language against the City. Count 18 is brought by plaintiff Brenda Mazariegos;  Count 39 is brought by plaintiff Sandra Solis;  and Count 57 is brought by plaintiff Nelson Solis.   All three counts purport to hold the City liable pursuant to Conn. Gen.Stat. § 52–557n(a)(1).  (B) Counts, 19, 40, and 58 which are brought by the same three plaintiffs against the City alleging the same negligence as the previous three counts but further alleging that the City is liable pursuant to 42 U.S.C. §§ 1983 and 1988. (C) Counts 21 and 22 both brought by plaintiff Feliciano Mazariegos against the City, seeking indemnification pursuant to Conn Gen Stat. § 7–465, and Conn. Gen.Stat. § 52–557n, respectively.   The City also seeks summary judgment on (D) any claims brought under § 7–465 for indemnification should the court grant summary judgment in favor of Officer Zach on the underlying claims.   Because of parallel allegations, the counts can be discussed in the four categories designated as A, B, C, and D, above.

The plaintiffs object to the City's Motion for Summary Judgment for the reasons to be discussed.

(A.) Negligence Counts:  18, 39 and 57

The three plaintiffs allege that their injuries were caused by one or more of the following negligent acts of the city of Stamford:  (1) the failure to properly train Officer Zach and other Stamford police department supervisors and officers;  (2) the failure to enact and enforce rules, regulations and policies which would have prevented the plaintiffs' injuries;  (3) the failure to evaluate and assign Officer Zach in light of previous incidents and complaints;  (4) the failure to terminate Officer Zach's employment subsequent to previous incidents and complaints;  and (5) the failure to properly supervise Zach and other Stamford police department officers at the scene prior to and during the events that lead to the plaintiffs' injuries.   The city of Stamford argues that it is entitled to immunity under General Statutes § 52–557n(a)(2) since the negligent acts or omissions alleged require the exercise of judgment or discretion.   The plaintiff counters that there is a genuine issue of material fact as to whether the negligent acts or omissions alleged were ministerial in nature in light of the previous incidents and complaints charged against Zach and the fact that the Stamford Police Department's employees were bound by a “Zero Tolerance Workplace Violence Policy.”   In opposition to the motion, the plaintiffs submit the July 2, 2007 Internal Affairs Division Memorandum (plaintiffs' Exhibit B), the September 20, 2007 Memorandum to Chief Brent Larrabee (plaintiffs' Exhibit C), the July 22, 2007 Memorandum from Sargent Weed to Lieutenant Dohmann (plaintiffs' Exhibit D), the November 27, 2007 Complaint to Lt. Cronin (plaintiffs' Exhibit E), the November 30, 2009 Interview of Greg Zach by SPD Chief Larrabee (plaintiffs' Exhibit F) and Zero Tolerance Workplace Violence Policy (plaintiff's Exhibit G).

As a general rule, “a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity.”   Williams v. New Haven, 243 Conn. 763, 767, 707 A.2d 1251 (1998).   “General Statutes § 52–557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages.”  Doe v. Petersen, 279 Conn. 607, 614–15, 903 A.2d 191 (2006).  Section 52–557n(a)(1) provides in relevant part:  “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ․” Section 52–557n(a)(2), however, limits municipal liability for negligent acts or omissions by providing in relevant part:  “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:  ․ (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

Section 52–557n(a)(2) is read to mean that a municipality is immune from its acts or the acts of its employees that are discretionary, or governmental, in nature.  Martel v. Metropolitan District Commission, 275 Conn. 38, 48, 881 A.2d 194 (2005).  “Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.”   Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003).  “The hallmark of a discretionary act is that it requires the exercise of judgment.”  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000);  see also Teresa T. v. Ragaglia, 272 Conn. 734, 745, 865 A.2d 428 (2005) (“[W]hen applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience”).  “In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  Martel v. Metropolitan District Commission, supra, 49.

“Municipal officials are immune from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society ․ Discretionary act immunity reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury ․ In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts ․ This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts.”   (Citations omitted;  internal quotation marks omitted.)  Doe v. Petersen, supra, 279 Conn. 614–15.

As a general rule, our Supreme Court has held that “the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality.”  (Internal quotation marks omitted.)  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988).   In the context of claims arising out of the failure to properly or adequately train and supervise municipal police officers, the courts have generally found that such considerations fall within the discretionary function of the municipality.   Swanson v. Groton, 116 Conn.App. 849, 862, 977 A.2d 738 (2009) (affirming summary judgment for the municipality finding that the officer had received training on how to handle intoxicated persons);  Disabella v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 0832044 (November 15, 2005, Keller, J.) (“Decisions on how to train officers with regard to traffic stops and investigations, and what such training should consist of, constitute discretionary governmental acts”);  Alexander v. Vernon, Superior Court, judicial district of Tolland, Docket No. X07 CV 02 0078935 (May 3, 2004, Sferrazza, J.) (“The supervision of a police force obviously involves the exercise of wide discretion”);  Cook v. Hartford, Superior Court, judicial district of Hartford–New Britain, Docket No. CV 89 0362482 (August 21, 1992, Aurigemma, J.) [7 Conn. L. Rptr. 720] (“The act of training and supervising police officers is clearly a discretionary governmental function”).   Furthermore, a municipality generally enjoys wide discretion in hiring, disciplining and terminating municipal employees.   Celotto v. Brady, Superior Court, judicial district of New Haven, Docket No. CV 06 5003279 (May 14, 2008, Bellis, J.) (“A decision to terminate employment requires substantial use of judgment, and is not a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion”);  Coletosh v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 97 0573462 (April 13, 1999, Wagner, J.T.R.) [24 Conn. L. Rptr. 399] (“The acts or omissions alleged in the plaintiff's complaint—negligent failure to instruct, supervise, control and discipline Hartford police officers—appear to be discretionary or governmental acts as a matter of law”);  Gervais v. West Hartford Board of Education, Superior Court, judicial district of Hartford–New Britain, Docket No. CV 95 0555396 (July 25, 1996, Lavine, J.) (17 Conn. L. Rptr. 383, 385) (“Considerations of who to hire, how to train such people, and how to supervise employees are decisions requiring the use of judgment and discretion”).

“Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive.   See, e.g., Violano v. Fernandez, 280 Conn. 310, 323–24, 907 A.2d 1188 (2006).   Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive.   See, e.g., Gauvin v. New Haven, [187 Conn. 180,] 186–87 [445 A.2d 1 (1982) ].”  Wisniewski v. Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012).

In Wisniewski the court was presented with the issue of whether the tree warden has a ministerial duty to inspect upon complaint any potentially hazardous trees.   The court found that, “[a]lthough the town maintains no written policies directing the conduct of its tree warden,” a factfinder could reasonably find that the tree warden had a ministerial duty to investigate complaints based on the general direction provided to the tree warden by the public works department and by the tree warden's own admission that he has a nondiscretionary duty to inspect such complaints.  Id., 375.   Therefore, “the custom and habit of a municipal official in the exercise of his duties is a proper substitute for a written directive in making a determination of the ministerial nature of the act.”   John Logan, “Municipal Tort Liability and Immunity:  Revisiting the ‘Ministerial’ Versus ‘Discretionary’ Distinction,” 86 Connecticut Bar Journal No. 4, 324, December 2012.

“Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ there are cases where it is apparent from the complaint ․ [that] the determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to ․ § 52–557n(a)(2)(B) turns on the character of the act or omission complained of in the complaint ․ Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omission necessarily involved the exercise of judgment, and thus, were discretionary in nature, summary judgment is proper:” Citations and Internal quotation marks omitted.)   Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010).

Plaintiffs make two arguments that the City had, and violated, a ministerial duty in regard to Officer Zachs' conduct on June 25, 2009 supportive of their negligence allegations of failure to train, failure to supervise and failure to terminate Officer Zach. Both arguments are based on Officer Zach's prior disciplinary record.   The evidence submitted by the plaintiffs shows that three complaints were filed to the Internal Affairs Division (IAD) of the Stamford Police Dept. by women drivers and a passenger with whom he interacted while working a side job for road construction in the area of Oaklawn Avenue on June 28, 2007.   Two complainants, sisters, claim they were confused and disoriented by the traffic pattern and they approached Officer Zach to get directions when he began a tirade of cursing and yelling at them, which included a threat of arrest.  (An independent witness confirmed Officer Zach's statement that one of the women also used profane language at him.)   Another woman complained that she was confused by the traffic pattern and didn't know which way to go.   She claimed that an officer later identified as Officer Zach began to scream and curse at her in a way she found totally inappropriate for a police officer.   The fourth woman claimed she was driving on Oaklawn Avenue in her husband's truck with which she was unfamiliar.   While passing the construction site she accidentally hit the gas pedal and passed the officers working the job.   She then stopped her vehicle when an officer identified as Officer Zach came running up to her vehicle and opened the passenger side door and began to scream and curse at her.   She said that her 8–year–old son was between her and the officer when this was happening, and began to cry.   The officer continued to scream at her.   The woman stated that he was yelling so loud that he drowned out the car radio.   When she stated that he was upsetting her son, he replied “you shouldn't even be driving with a child in the car,” slammed the door and walked away.

After an investigation, the IAD concluded “Officer Zach has shown an intolerable lack of respect and irascible behavior” and found that Officer Zach had violated Department Rules and Regulations, Section 1.0, General Principles of Conduct, specifically Section 1.7 which states “Members shall be courteous to the public, and tactful in the performance of their duties.”  (Ponvert Affidavit Ex. B, “Three (3) Complaints of Rudeness Against Officer Zach.”) He was disciplined in that he was “temporarily assigned to the front desk area of police headquarters [for] approximately six weeks.”   There was no retraining ordered, nor any changes in his supervision.  (Lt. Dokmann Deposition, City's Ex B, p.20 at 14–22.)   He was required, however, to have a number of “interactive conversations” with Chief of Police Nivakoff.  (Ponvert Affidavit, Exhibit L—Transcript Excerpt of March 16, 2010 Pro–Forma Hearing.)

From these facts plaintiffs argue, first, that “Given Zach's known history of abusive and violent propensities, a reasonable jury could conclude that the City had a ministerial obligation to train, evaluate, assign, and supervise him in ways that would reduce or prevent his verbal and physical abuse of female citizens.”  (Plaintiff's Memorandum (No. 137), p. 6.) There was no complaint, and no evidence, of any physical violence in connection with the 2007 incidents.   And there is no authority, and plaintiffs have cited none, which would permit this court to look at the officer's disciplinary history and glean a ministerial obligation of the City to punish an officer more severely than he was punished by the Internal Affairs Division and the Stamford Police Department following a full investigation, in the absence of any statute, ordinance, rule, policy, regulation, or even a custom or established practice mandating a specific more severe penalty.

The second argument is that, in not punishing Officer Zach more severely, the Stamford Police Department violated a ministerial obligation found in the City's “Zero Tolerance Workplace Violence Policy” promulgated by the City on April 10, 2002, a copy of which is attached to the Ponvert Affidavit as Ex G. The Policy seems primarily focused at preventing violence directed toward employees of the City and the Board of Education.  “This policy is a directive and statement that the City of Stamford and the Board of Education have a ZERO tolerance for any acts of violence committed against any City Employee.”   (Willima Stover Memo, April 19, 2002, Part of Ponvert Affidavit Ex. G.) “The City values its employees and with this policy the City and Board affirm their commitment to providing a workplace that is free from potential violence.”   (Policy “Introduction.”)   The Stamford Police Department is not specifically mentioned in the Policy, except as the party to contact by calling 911 “if necessary” in the event of violence.   On close reading, however, the Policy has a broader scope:

The City/Board will not tolerate any acts of violence committed by or against City/Board employees, or members of the public, while on City of Stamford/Board of Education property, or while performing City of Stamford/Board of Education business at other locations.  (Emphasis added.)   Policy “Introduction.”

The Policy defines “violence” to include “a behavior or action that a reasonable person would perceive as menacing.”   Since police officers are city employees, and the construction site on Oaklawn Avenue was an “other location” where Officer Zach in 2007 was “performing his duties,” and the four complainants were members of the public who very well could have perceived Officer Zach's verbal abuse toward them as “menacing,” the Zero Tolerance Workplace Violence Policy would apply to Officer Zach's conduct toward those women.   In that event the Policy provides, at page 3 under the heading “Employees” that:

The City of Stamford and the Stamford Board of Education will not tolerate violent acts or threats of violence, verbal or implied, by employees.   In such cases the City will impose immediate and definitive use of the disciplinary process, up to and including termination of City Employment ․ If appropriate, criminal prosecution will also be pursued in addition to the disciplinary process.

“The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  Violano v. Ferndandez, 280 Conn. 310, 318 (2006).   By that standard The Zero Tolerance Workplace Violence Policy fails to create a ministerial obligation to punish in any certain way or to supervise, to train, or to terminate an employee who violates the policy.   The requirement of “immediate and definitive use of the disciplinary process” leaves room for the exercise of considerable discretion on how to handle these situations on a case-by case policy.   Officer Zach was promptly disciplined by reassignment and informal “interactive” discussions with the Chief.   There was no obligation in the Policy, however, to order him to anger management or any other specific training, or to alter the chain of supervision over him, which are purely discretionary decisions.

For these reasons the defendant City has met its obligation of showing that there is no material issue of fact on the negligence counts, and the plaintiffs have failed to demonstrate any evidentiary predicate of a triable issue of fact on the ministerial discretionary issue.   The City's Motion for Summary Judgment as to Counts 18, 39, and 57 is therefore granted.

(B) Violation of Civil Rights Counts (42 U.S.C. § 1983):  Counts 19, 40, and 58

These three counts are brought on behalf of plaintiffs Brenda Mazariegos, Sandra Solis, and Nelson Solis, respectively, alleging liability of the City of Stamford pursuant to U.S.C. §§ 1983 ¹ and 1988.   Each plaintiff incorporates the alleged acts or omissions from his or her negligence count, and further alleges that “[t]hese acts or omissions were the defendant's policy and practice.”

Section 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State ․ subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1988 is entitled “Proceedings in vindication of civil rights” and provides, inter alia, for awards of reasonable attorneys fees and costs and expert's fees to the prevailing party, other than the United States, in an action brought under Section 1983.

The City moves for summary judgment, claiming that there is no evidence that an official policy of the City caused a constitutional injury to the plaintiffs.   The plaintiffs argue that the City's failure to supervise and train Officer Zach and other Stamford Police Department officials amount to an official policy of the City. Each party relies on the record submitted as discussed herein in connection with the negligence counts.

Section 1983 Claims Against Municipalities, in General

“In order to prevail on a claim against a municipality under section 1983 based on acts of a public official, a plaintiff is required to prove:  (1) actions taken under color of law;  (2) deprivation of a constitutional or statutory right;  (3) causation;  (4) damages;  and (5) that an official policy of the municipality caused the constitutional injury.  Monell v. Dept. of Social Services, 436 U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).”   Roe v. Waterbury, 542 F.3d 31, 36 (2nd Cir.2008), cert. denied, 558 U.S. 933, 130 S.Ct. 95, 175 L.Ed.2d 234 (2009).   Regarding the fifth element, the United States Supreme Court, in applying Monell, found that “a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue.   Respondeat superior or vicarious liability will not attach under § 1983 ․ It is only when the execution of the government's policy or custom ․ inflicts the injury that the municipality may be held liable under § 1983.”  (Citation omitted;  internal quotation marks omitted.)  Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

The U.S. Court of Appeals for the Second Circuit found that “Monell does not provide a separate cause of action for the failure by the government to train its employees;  it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.”  Okin v. Cornwall–on–Hudson Police Dept., 577 F.3d 415, 439 (2009).   Therefore, liability under § 1983 can be premised on either (1) a policy or custom of a municipality or (2) the failure to train public officials which lead to a constitutional violation;  and both are subject to the “deliberate indifference” standard.  Id.;  see Monell v. Dept. of Social Services, supra, 436 U.S. 690–91;  Canton v. Harris, supra, 489 U.S. 385.

Deliberate Indifference Standard

“As the Supreme Court has cautioned, ‘deliberate indifference’ is a stringent standard of fault, and necessarily depends on a careful assessment of the facts at issue in a particular case.”  (Citations omitted;  internal quotation marks omitted.)  Cash v. County of Erie, 654 F.3d 324, 334 (2nd Cir.2011), cert. denied, 132 S.Ct. 1741, 182 L.Ed.2d 528 (2012).  “To prove deliberate indifference, we have required the plaintiff to show:  (1) that a policymaker knows ‘to a moral certainty’ that her employees will confront a given situation;  (2) that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation;  and (3) that the wrong choice by the ․ employee will frequently cause the deprivation of a citizen's constitutional rights.”  (Internal quotation marks omitted.)  Okin v. Cornwall–on–Hudson Police Department, supra, 577 F.3d 440.   Furthermore, “deliberate indifference requires a showing that the official made a conscious choice, and was not merely negligent.”  Jones v. East Haven, 691 F.3d 72, 81 (2nd Cir.2012).

Policy or Custom of Municipality

“In order to establish the liability of a municipality in an action under § 1983 for unconstitutional acts by a municipal employee below the policymaking level, a plaintiff must establish that the violation of his constitutional rights resulted from a municipal custom or policy.”  (Citations omitted.)   Vann v. New York, 72 F.3d 1040, 1049 (2nd Cir.1995).  “A municipality may be found to have a custom that causes a constitutional violation when faced with a pattern of misconduct[, it] does nothing, compelling the conclusion that [it] has acquiesced in or tacitly authorized its subordinates' unlawful actions.”   (Internal quotation marks omitted.)  Okin v. Cornwall–on–Hudson Police Dept., supra, 577 F.3d 439.

“A § 1983 plaintiff injured by a police officer may establish the pertinent custom or policy by showing that the municipality, alerted to the possible use of excessive force by its police officers, exhibited deliberate indifference ․ To prove such deliberate indifference, the plaintiff must show that the need for more or better supervision to protect against constitutional violations was obvious ․ An obvious need may be demonstrated through proof of repeated complaints of civil rights violations;  deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents ․ Deliberate indifference may also be shown through expert testimony that a practice condoned by the defendant municipality was contrary to the practice of most police departments and was particularly dangerous because it presented an unusually high risk that constitutional rights would be violated.”  (Citations omitted;  internal quotation marks omitted.)  Vann v. New York, supra, 72 F.3d 1049.

For example, in Vann v. New York, supra, 72 F.3d 1041, the U.S. Court of Appeals for the Second Circuit reversed a granting of summary judgment rendered in favor of the municipal defendant in the plaintiff's action under § 1983.  Vann involved a case where a police officer with a history of abusive conduct arrested and used excessive force against the plaintiff.   The court reversed and remanded the case, finding that the police officer's history of abusive conduct, the numerous complaints filed against him, the fact that the officer had been identified by the police department as “violent-prone” and the department's “general methods for dealing with problem policemen and of its responses to past incidents” were sufficient to place the issue of whether the municipality was deliberately indifferent to the dangers posed by the officer before a jury.  Id., 1050–51.

Failure to Train

“[T]here are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for liability under § 1983.”  Canton v. Harris, supra, 489 U.S. 387.  “[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact ․ [The question becomes] whether [a] training program is adequate;  and if it is not, the question becomes whether such inadequate training can justifiably be said to represent ‘city policy.’  ․ [I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.   In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.”  (Emphasis added.)  Id., 390.

“For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons.   The city has armed its officers with firearms, in part to allow them to accomplish this task.   Thus, the need to train officers in the constitutional limitations on the use of deadly force ․ can be said to be ‘so obvious,’ that failure to do so could properly be characterized as ‘deliberate indifference’ to constitutional rights.   It could also be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are ‘deliberately indifferent’ to the need.”  (Citation omitted.)  Canton v. Harris, supra, 489 U.S. 390, n.10.

“City of Canton requires that plaintiffs establish not only that the officials' purported failure to train occurred under circumstances that could constitute deliberate indifference, but also that plaintiffs identify a specific deficiency in the city's training program and establish that that deficiency is ‘closely related to the ultimate injury,’ such that it ‘actually caused’ the constitutional deprivation.”  Amnesty America v. West Hartford, 361 F.3d 113, 129 (2nd Cir.2004).  “In resolving the issue of a city's liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform.   That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program ․ It may be, for example, that an otherwise sound program has occasionally been negligently administered.   Neither will it suffice to prove that an injury or accident could have been avoided if an officer had better or more training, sufficient to equip him to avoid the particular injury-causing conduct.   Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal.   And plainly, adequately trained officers occasionally make mistakes;  the fact that they do says little about the training program or the legal basis for holding the city liable.”  (Citations omitted.)  Canton v. Harris, supra, 489 U.S. 390–91.

In this case, there is no issue of fact as to any actionable deficiency in Officer Zach's training program.   Defendant City has submitted the affidavit of Capt. Susan Bretthauer of the Stamford Police Department who worked with the Training Division from December 2006 through February 2013.   The affidavit details the training Officer Zach received, along with other members of his class, at the Stamford Police Academy from June 2005 through January 2006 which included “extensive training concerning all aspects of the duties and responsibilities of police officers, including, among other topics, the laws of arrest, motor vehicle law, police and the public, and the use of force.” (¶ 5.)   Following graduation from the academy Officer Zach received four months field training which “consists of on-the job training with an experienced, specially trained Field Training Officer who instructs, observes, and evaluates, the probationary officer.” (¶ 7.)   He remained as a probationary officer until he had been with the department for 18 months at which point Officer Zach became a certified police officer.   As such he was required to undergo 60 hours of review credit training every 3 years, which requirement he satisfied beginning in 2006 through the date of this incident on June 25, 2009. (¶¶ 10, 11.)   His review credit training included a yearly review of police officers' use of force, and the Stamford Police Department's Use of Force Policy (No. 618).²  It also included classes on the laws of arrest, civil liability, law enforcement, citizens with special needs, conflict management, and police and the public.   The last mandatory review training session attended by Officer Zach prior to this incident was on June 11, 2009. (¶¶ 11, 12.)   Defendant City has satisfied its initial burden of showing adequate and relevant training provided to Officer Zach. Plaintiffs have made no showing of any specific deficiency in the officer's training that caused the constitutional deprivations they are claiming.³  Plaintiffs' suggestion that the review training sessions continued to be the exact training Officer Zach received prior to the 2007 complaints for mistreatment and abuse of female citizens is not substantiated by the factual record.

After careful review of the record, however, the court does find that there is a material issue of fact as to a custom or practice of the Stamford Police Department's deliberately indifferent failure to supervise Officer Zach's over aggressiveness and abusive treatment of members of the public encountered on patrol, and inability to de-escalate confrontational situations to the point that violations of constitutional rights are curbed.  “A municipal policy may be pronounced or tacit and reflected in either action or inaction.   In the latter respect, a city's policy of inaction in light of notice that its program will cause constitutional violations is the functional equivalent of a decision by the city itself to violate the constitution.”  Cash v. County of Erie, 654 F.3d 324, 334 (2 Cir2011).   See, also, Vann v. City of New York, supra.   Following the four complaints of abusive conduct at the construction site on Oaklawn Avenue on June 28, 2007, there were further similar complaints filed against Officer Zach. There is an indication in the record that there were two incidents several weeks later on July 18, 2007 involving Officer Zach that warranted concern about his performance of duty and raised enough concern that his Sergeant decided to mention them to Lt. Dohmann.   No details are provided.  (Memorandum of Sgt. Weed to Lt. Dohmann, July 22, 2007, Ponvert Affidavit, Exhibit D.) But Sgt. Weed felt compelled to add:

In both cases, Officer Zach's borderline over aggressiveness and inability to de-escalate the situations as well as his demeanor during the investigation has raised my level of concern to where I no longer feel verbal counseling him will be adequate.   His latest choices to insistently pursue even the slightest transgression with almost antagonistic zealous culminating in arrests for interfering with police leaves me to question not only his judgment but his motivation.  Id.

There is no evidence that Lt. Dohmann responded in any way to Sgt. Weed's memo.   Four months later on November 27, 2007 there is a memo from three sergeants to Lt. Cronin regarding yet another incident with Officer Zach which involved physical contact with a Mr. Powell.   The sergeants wrote:

Officer Zach has been the subject of numerous complaints similar in nature in the past, it is suggested a review of past remedial measures should be made, and the next step of remedial and/or disciplinary action should be restored.   Ponvert Affidavit Ex. E.

Not only have Stamford citizens complained about Officer Zach's abusive and unprofessional conduct, but his fellow officers and supervisors have even refused to work with him.   See November 30, 2009 interview of Gregory Zach by Chief of Police Larrabee, Ponvert Affidavit, Exhibit F, at 3:  “At one point some of your bosses did not want to work with you.   And some of your fellow officers didn't want to work with you.”

Other than his punishment for this 2009 incident upon complaints of plaintiffs Brenda Mazariegos, Sandra Solis, and Nelson Solis, the only evidence of any prior “remedial measures” for Officer Zach's over aggressive behavior was the six-week reassignment to the front desk at police headquarters for “rudeness” to the Oaklawn Avenue complainants, following which he was returned to patrol, totally unsupervised, until this incident.   This evidence sufficiently raises the issue whether or not Officer Zachs' aggressiveness and abuse and inability to de-escalate became a policy or custom of the municipality.   And the evidence also raises an issue of fact as to deliberate indifference.   Certainly the City knew to a moral certainty that an officer sent on patrol day after day in an urban setting obviously is going to meet confrontational situations with members of the public who are seeking directions or assistance or violating the law at least in some minor way, and that such situations obviously present a difficult choice of the sort that supervision would make less difficult especially when, as here, the officer has a history of mishandling those situations.   And it is obvious that the wrong choice by the officer will frequently lead to at least detention if not more serious deprivation of constitutional rights.  “Thus, deliberate indifference may be inferred where the need for more or better supervision was obvious but the policymaker failed to make meaningful efforts to address the risk of harm to the plaintiffs.”   (Citations and internal quotation marks omitted.)  County of Erie, supra, 334.

For these reason the Motion for Summary Judgment is denied as to the Section 1983 claims alleged in Counts 19, 40, and 58.

(C) Counts Brought Against the City by Plaintiff Feliciano Mazariegos:  Counts 20,4 21, and 22

Feliciano Mazariegos, the husband of plaintiff Brenda Mazariegos, has brought three counts against the City. Count 20 sounds in bystander emotional distress against Officer Zach and the City of Stamford.   Count 21 seeks indemnification from the City on the bystander emotional distress claim pursuant to Conn. Gen.Stat. § 7–465.   Count 22 seeks indemnification from the City on the bystander emotional distress claim pursuant to Conn. Gen.Stat. § 52–557n(a)(1).

Summary Judgment has already entered on the motion of Officer Zach against the plaintiff Felciano Mazariegos on his bystander emotional distress claim of Count 20.   See Memorandum of Decision on Defendant Gergory Zach's Motion for Summary Judgment on the Fifth Count and the Twentieth Count.  (October 11, 2013, Jennings, J.) (No. 134.86).   The same reasoning applies to this Motion for Summary Judgment filed by the City. The City's Motion for Summary Judgment on Count 20 is therefore granted.

Count 21 was struck by Judge Tobin on March 7, 2013.   See Memorandum of Decision, No. 113.86 [55 Conn. L. Rptr. 775].   Were it not stricken, summary judgment would be granted because summary judgment has already been granted on the underlying bystander emotional distress claim, and there is no obligation to be indemnified under Conn. Gen.Stat. § 7–465.   The City's Motion for Summary Judgment is granted as to Count 22 because summary judgment has already been granted on the underlying bystander emotional distress claim, and there is no obligation to be indemnified under Conn. Gen.Stat. § 52–557n(a)(1).

(D) Other Indemnification Claims Against the City under Conn. Gen.Stat. § 7–465

Summary Judgment has not been granted on the claims underlying any other counts seeking indemnification under Conn. Gen.Stat. § 7–465.

ORDER

The City's Motion for Summary Judgment is granted as to Counts 18, 20, 22, 39, and 57 of the Second Revised Complaint.   The City's Motion for Summary Judgment is denied as to Counts 19, 40, and 58 of the Second Revised Complaint.   No ruling is made as to Count 21, since it was stricken by order of Judge Tobin on March 7, 2013.

So Ordered,

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. Section 1983 derives from section one of the Civil Rights Act of 1871.  Monell v. New York City Dept. of Social Services, 436 U.S. 658, 664, 98 S.Ct. 2018 (1978)..  FN1. Section 1983 derives from section one of the Civil Rights Act of 1871.  Monell v. New York City Dept. of Social Services, 436 U.S. 658, 664, 98 S.Ct. 2018 (1978).

FN2. There is nothing in the record for purposes of this motion which enlightens the court as to the contents of Policy No. 618..  FN2. There is nothing in the record for purposes of this motion which enlightens the court as to the contents of Policy No. 618.

FN3. The City has assumed for purposes of this motion that plaintiffs are alleging a violation of their constitutional rights regarding the amount of force used by Officer Zach against all three of them while plaintiff Brenda Mazariegos was being arrested and detained.  (Defendant's Memorandum, p. 5.).  FN3. The City has assumed for purposes of this motion that plaintiffs are alleging a violation of their constitutional rights regarding the amount of force used by Officer Zach against all three of them while plaintiff Brenda Mazariegos was being arrested and detained.  (Defendant's Memorandum, p. 5.)

FN4. The defendant City's Motion for Summary Judgment only lists Counts 21 and 22, but the City has briefed the Motion for Summary Judgment as to Count 20 as well..  FN4. The defendant City's Motion for Summary Judgment only lists Counts 21 and 22, but the City has briefed the Motion for Summary Judgment as to Count 20 as well.

Jennings, Alfred J., J.T.R.